Are the Old Party Wall Ways Always the Best?

The Party Wall etc. Act 1996 is a relatively thin document and provides limited guidance on the practicalities of how surveyors actually administer the Act. Party wall practice has therefore evolved over time as well as being shaped by case law.

A good example of this is the convention of recording a schedule of condition. This is a record of the condition of those parts of the adjoining owner’s property at risk from the works, prepared prior to the works commencing and available to be used as evidence in case of a damage claim. You’ll find no reference to schedules of condition in the Act, but everybody agrees that they are an essential part of the process.

The convention that I wanted to consider today is the one which determines that it should be the surveyor who acts for the building owner who prepares the draft party wall award (the party wall award is the document agreed between the appointed surveyors which resolves the dispute which arose when the party wall notice was dissented to).

The typical situation is that the surveyor acting for the building owner uses a template (RICS and FPWS have each designed one) to prepare a draft award which is sent to the adjoining owner’s surveyor for review. The adjoining owner’s surveyor will suggest changes, add clauses etc. and return it to the building owner’s surveyor who will, unless they feel very strongly, accept them.

I assume that the convention was borrowed from the legal profession but the practicalities around preparing for building works means that it may not, or may not always, be the best approach.

Unlike solicitors, someone with no experience and no qualifications can set themselves up as a party wall surveyor and start accepting appointments. The quality of documents produced by such a surveyor will be poor, will require significant amendment by the adjoining owner’s surveyor and that takes time. As a result, the process takes longer and becomes more expensive for the building owner. That will be frustrating if they are waiting to commence work.

Even if the building owner’s surveyor is competent, it’s likely that the adjoining owner’s surveyor will make changes to the draft as they will be thinking more deeply about how the risk of damage and inconvenience to their appointing owner can be limited (both surveyors should have this objective, but it is the adjoining owner’s surveyor that will be held to account if things go wrong).

If the draft award is prepared by the adjoining owner’s surveyor, it will obviously be acceptable to them and, in all likelihood, it will be acceptable to the building owner’s surveyor. Changes to a draft award generally fall in to one of three categories; correcting factual errors, ensuring that the award does not contradict the Act (or subsequent case law) and ensuring that there aren’t any inherent contradictions. The building owner’s surveyor is unlikely to reject such changes.

The information, including drawings, required for the adjoining owner’s surveyor to prepare a draft award can be taken from the notice pack. Even if the drawings have to be updated, the impact on the draft award will generally be minimal. Where the works are complex, such as a basement extension, and the necessary information is provided to the surveyors piecemeal, it would still make sense for the adjoining owner’s surveyor to prepare the draft award but only when all the relevant information has been provided.

The adjoining owner’s surveyor would have to embrace the new arrangement, otherwise the building owner’s surveyor will just end up chasing the draft rather than chasing comments on the draft and the benefit will be lost. A wise adjoining owner’s surveyor will see that the time spent up front will save them time later (although unfortunately, adding time rather than saving it is still the priority for a small number of surveyors).

Our surveyors are currently putting this argument in to practice by offering to prepare the draft award when we’re acting for adjoining owners. We anticipate that this will cut down the time required and improve the quality of the final document (a heavily amended document never reads as well as a good quality first draft).

If you require advice on a party wall matter, you are welcome to contact us on 020 7183 2578 or via email.